Distraction and Desperation

With less than six days before the midterm election polls close the news is even busier than usual.

Some lost and lonely loser in Florida stands accused of sending mail bombs to at last a dozen prominent Democratic politicians and activists, and another lost and lonely loser is in a Pennsylvania jail awaiting charges of slaughtering 11 Jews as they worshipped God in a Pittsburgh synagogue. An hilariously inept plot to frame the special counsel investigating the “Russia thing” for ’70s-era sexual harassment has fallen apart, and is now the subject of a federal investigation of its own. There are the usual campaign issues, too, such an ongoing debate about mandating that insurance companies cover pre-existing conditions which the Democrats seem to be winning and the Republicans are reduced to lying about. The economy continues to chug along well enough, but lately the stock markets have been up and down and mostly down.

Given all that, we’re not surprised that President Donald Trump is mostly talking about the impending invasion of Middle Eastern terrorists and Central American lepers who are marching the last 900 miles or so of their journey to America’s southern border, along with the rest of the invading army of dark-hued others who are already here. Trump is promising to send as many as 15,000 American troops to join the thousands of National Guardsmen and Border Patrol agents currently in place to turn back a few thousand unarmed and no doubt worn out asylum-seekers, and threatening to repeal the 14th amendment’s guarantee of birthright citizenship with an executive order. All the die-hard fans are cheering it on at Trump’s non-stop rallies and on certain conservative media, but to most of the rest of us it smacks of desperation.

The last invasion of the southern border by thousands of walking and unarmed asylum-seekers mostly petered out by the time it arrived at the border, with the usual Border Patrol contingent well able to handle the resulting 14 arrests for illegal immigration, and this one looks no scarier. Trump freely admits he has no proof that it’s being organized and funded some of those prominent Democratic politicians and activists who recently received pipe bombs in the mail, and none of those certain conservative media have yet to document any Middle Eastern terrorists or lepers, so more military power than we’re currently deploying against the Afghan Taliban and the Islamic State combined seems an overreaction. We still like to think ourselves law-and-order conservatives, but we hail from a more hopeful era when even the most rock-ribbed Republicans thought that the border laws could be enforced without violating the Posse Comitatus Act or America’s treaty obligations to grant due process to the claims of asylum-seekers, and without building tent cities and orphaning children and all the other cruelties that today’s law-and-order crowd seem to crave.

Back in that more hopeful era the law-and-order sorts of rock-ribbed Republicans used to venerate the Constitution and insist it be interpreted according to its plain language, and to disdain the use of executive orders by power-grabbing presidents, but that’s no longer the case. The 14th Amendment to the Constitution plainly states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside,” and way back in 1895, when there was a “Yellow Peril” that led to the Chinese Exclusion Act and long before the damned liberals infested the judicial system, the Supreme Court ruled that plain language meant that even though a impoverished cook named Wong Kim Ark was born to Chinese parents his birth on American soil had conferred him American citizenship. House Speaker Paul Ryan and the legal scholar who’s married to Trump advisor Kellyanne Conway and numerous other old-fashioned Republican types agree, and even many of the Republicans who think we would well be rid of birthright citizenship say that it shouldn’t be accomplished by the stroke of a presidential pen.

Trump in turn “tweeted” back that “Paul Ryan should be focusing on holding the Majority rather than giving his opinions on Birthright Citizenship, something he knows nothing about!” The entirely autodidactic constitutional scholar then laid out his argument in two separate “tweets.”

“So-called Birthright Citizenship, which costs our country billions of dollars and is very unfair to our citizens, will be ended one way or the other. It is not covered by the 14th Amendment because of the words ‘subject to the jurisdiction thereof.’ Many legal scholars agree …

“Harry Reid was right in 1993, before he and the Democrats went insane and started with the Open Borders (which brings massive Crime) “stuff.” Don’t forget the nasty term Anchor Babies. I will keep our Country safe. This case will be decided by the Supreme Court!”

Such elegant English prose is hard to argue with, but we’ll take a stab at it. Birthright citizenship might well be ended some day, and perhaps for good reason, but surely it makes some difference if it happens the constitutional way or or some other way. We have no more idea what “subject to the jurisdiction thereof’ than Trump does, but we suspect the Supreme Court of 1895 had a grasp of the concept, and we’ll dare Trump to say that only the citizens in the United States are subject to its jurisdiction. We’ll also note that White House press secretary couldn’t name of those legal scholars who agreed with Trump, and that don’t consider former Senator Harry Reid any sort of constitutional authority. The nasty term “Anchor Babies” refers to immigrants who bring their family into the country through the nastily-termed “chain migration,” and although that’s also a fair debate we’re disappointed that Trump prefers to discuss it in admittedly nasty terms. We’ll take Trump’s word for it that he’ll keep us safe, and we’ve little doubt that any executive-ordered alterations to the previous understanding of the 14th Amendment will be settled in the Supreme Court, and we’ll be interested to see how those plain-text originalists that Trump appointed rule on that.

In the meantime, Trump will have trouble distracting attention from all the rest of the news, little of which currently benefits his Republican party. The pipe bomber and the Synagogue shooter can’t credibly be blamed on the damned Democrats, as all the mail bombs were sent to his most frequent “tweet” targets, and he was snubbed by both Republican and Democratic public officials and some of the grieving families when he paid a consolatory visit to Philadelphia. The “Russia thing” chugs along, Obamacare is somehow polling better than the Trump tax cut, the stock market goes up and down, and that slow-walking invasion is still a thousand long miles away and the midterm elections are just five short days hence.

— Bud Norman

A Good Day at the Court

The Supreme Court has ruled that Michigan doesn’t have to practice racial discrimination if it doesn’t want to, and this is a double dose of good news.

By upholding a ballot measure banning affirmative action in state university admissions, which passed by a 58 to 42 percent margin, the court has struck yet another legal blow to that insipid policy. These thinly-vieled quota systems exacerbate racial tensions, diminish the accomplishments of the most capable minorities, funnel less capable minorities into failure at elite colleges rather than success at more suitable institutions, punish meritocratic notions in the process, produce a less educated country as a result, and are an affront to the essential ideal of a color-blind society. They do little to rectify the past injustices they are meant to atone for, and add new ones by punishing Asians and Jews and other historically oppressed minority groups that nonetheless produce students deserving of admission in numbers greater than their share of the overall population. They certainly do nothing to address the continuing failure of America’s public schools to educate their black and Hispanic students as well they do their white and Asian charges, a social catastrophe which affirmative action implicitly acknowledges, and enables the failure to continue without provoking the wrath of the teachers’ unions.

The court’s decision does not ban the practice of affirmative action, but it does affirm the right of the people of Michigan or any other state to do so. This is a heartening development, too, as it represents an all-too-rare victory for public opinion over the supposedly superior wisdom of the judiciary. There are certain fundamental rights explicitly enumerated in the Constitution which no popular vote can revoke, and the courts have a duty to thwart any temporary public passions about these matters, but on issues ranging from same-sex marriage to affirmative action to environmental regulations the courts routinely substitute their judgment for the clearly stated desires of legislatures and even public referenda. When a priestly caste of black-robed men and women can discern that the Constitution confers an absolute to homosexual marriage or a student of one race’s right to admission to a state university over a more qualified applicant of another race or the Environmental Protection Agency’s right to regulate the exhalations of every citizen, all of which would have been anathema to men who wrote and ratified that Constitution, the document ceases to have any meaning. When the court defers to public opinion, as it did on Tuesday, there’s still a chance of restoring some semblance of constitutional order.

It’s bad news that such a commonsensical ruling seems such welcome good news, and those inclined to worry can note that two justices dissented and a third would have had she not been forced to recuse herself because of a previous involvement in the case. Justice Sonia Sotomayor wrote a 58-page dissenting opinion that asserted those 58 percent of Michiganders who voted for the ban are nasty old racists, and argued that a ballot measure which states that Michigan may not “discriminate against, or grant preferential treatment to, any individual on the basis of race, sex, ethnicity, or national origin” is somehow a violation of the 14th Amendment. In keeping with the currently fashionable sensibilities she added some balderdash about how affirmative action had benefited her own career, although she stopped short of admitting that she owes her appointment to the court to the practice, but a majority of people in Michigan and the other 49 states are entitled to conclude that she’s another persuasive argument against it.

— Bud Norman